In yesterday's post, I argued that to get a court to uphold the 1935-2030 copyright in "Happy Birthday to You," Warner Music Group would likely have to convince the court of three things. It turns out that WMG would face difficulties with all three. The details are in my article ( http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1111624), but here's a summary:

1. There's little or no evidence that Patty or Mildred Hill wrote the "Happy Birthday" lyrics. Indeed, Patty Hill testified in 1937 that she had written the original "Good Morning to All" lyrics, and that she had used the "Happy Birthday" lyrics, but she stopped conspicuously short of testifying that she had written the "Happy Birthday" lyrics. Over a hundred years after those words were first used with the Hill sisters' melody, no one is alive who could testify about their origin, and I have found no relevant documentary evidence — no drafts, no letters, nothing.

2. The 1935 publications of "Happy Birthday to You" bore the copyright notice "Copyright 1935 by Clayton F. Summy Co." It is very likely that the Summy Company did not own copyright in the song at the time (it probably had an implied license for the song, and owned only the musical arrangments that its employees had made). Under then-prevailing precedent, and for several decades thereafter, if you published a work with copyright notice naming someone other than the work's owner, you forfeited copyright. However, here WMG might be able to take advantage of later changes in judicial attitude.

3. The renewal registrations filed in 1962 — necessary to maintain copyright beyond 1963 — are only for the arrangements, and do not claim to renew the song itself. This is probably the point of greatest weakness in the copyright, and this issue could also likely be decided early in litigation, because the facts are clear.

So if there are these weaknesses, and if a $2 million per year income stream is at stake, why hasn't anyone challenged the copyright's validity? The short answer is that no single user is paying enough of that $2 million to make a challenge worthwhile, and it's extremely difficult for users to organize a collective effort.

In recent years, about 35% of the "Happy Birthday" income has come from performance rights licensing through ASCAP. (I can make this estimate because I discovered that there has been litigation over the alleged mishandling of a trust funded by "Happy Birthday" royalties, and I got access to the court files, which include income reports.) ASCAP collects money from thousands of restaurants, bars, and radio and TV stations for "blanket licenses" covering all of the millions of songs that are in its repertoire. The price of the licenses don't change when individual songs go in or out of copyright. That means that the licensees don't have an incentive to challenge the copyright on one song (and a court might even rule that they couldn't). Other music publishers that receive royalties through ASCAP might be able to mount a challenge, but there may be too much glass in their own houses to start throwing stones.

The remaning 65% comes from all other licensing — for uses in movies, on TV, in ads, and so on. Here's one small example I just learned of from a woman who e-mailed me yesterday from Australia. She was involved with an Australian movie called "Annie's Coming Out". It's about a social worker who works at a hospital for mentally disabled children. During one scene in the movie, a group of children with multiple sclerosis sing "Happy Birthday" to another child with MS. When the movie was released (on a very small scale) in the US in 1984, its producers had to pay WMG's predecessor $5000 to use the song.

Licenses for bigger US releases probably cost more (IMDB lists 176 movies that feature "Happy Birthday to You" but it misses "Annie's Coming Out"). But even, say, $30,000 is not nearly enough to consider funding copyright litigation. And in my article, I consider coordination problems that make it unlikely that a group of "Happy Birthday" users will ever find each other and jointly finance litigation. The result is that the copyright in the song will probably never be tested.

Ultimately, this is not just about one song. There are almost certainly other works out there generating significant licensing income in spite of serious copyright weaknesses. However, I don't see any easy fix.